Why Do Comey and Goldsmith Hate America Military Commissions?
I realize that Eric Holder couldn’t really have told the squawking Republicans that military commissions are much riskier a place to charge alleged terrorists than civilian courts. Which is why I’m grateful that Jim Comey and Jack Goldsmith did.
In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.
One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions’ validity. This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century.
By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again. [my emphasis]
It won’t do any good, though. Republicans want to try KSM in one of their fancy new military commissions even if it means they won’t get to kill him in the end.
Nobody likes a loser…
Comey and Goldsmith:
Perhaps I missed something in Holder’s statements last week, but I think the five he referred back to their military commissions included, eg, Omar Khadr, who had nothing to do with the Cole.
What in the world are Comey and Goldsmith trying to protect?
EW,
I’ll try my question/comment again.
What in the world are Comey and Goldsmith trying to protect? The following quote from their commentary had me a bit stumped.
(my bold)
Those comments just jump out at me and have me a bit puzzled.
I dunno, doesn’t look like much to me. Holder et. al are making pragmatic tactical decisions on how and where to proceed and they did make a different path on KSM than Bush by bringing him to SDNY. Time will indeed tell.
I am rather surprised that some people expect Obama and his Cabinet to make anything other than pragmatic political decisions. It is not only what will actually work in accomplishing a goal, but it is also about the formal execution of the political powers of the President.
With respect to this, I think Obama’s goal or intent is very clear — close down Gitmo, and draw a line under all the individual cases poor and unconstitutional policy in the prior administration left on the table.
Obama (and Holder) have to do this against the frantic background of his political opponents carrying on mass resistance activity against his effectively using Presidential Powers. It is rather like trying to do needlepoint while sitting in the big cat cage in a circus ring, while the clowns are in another ring, and the trapeze artists fly overhead.
What I am trying to tease out is the Criteria Holder may be using to sort the remaining Gitmo detainees and cases. SDNY civil criminal trials make sense to me in this “disposal” operation simply because I think they have a strong body of pre arrest evidence that can come in in a federal trial, that evidence has a high probability of leading to conviction, and removes the defendents from the scene for good. That’s necessary to getting to the goal of eliminating Gitmo for good.
BBC had a piece recently about the renovation of the prison at Bagrum in Afghanistan. They had a tour, and BBC sent along a reporter. Apparently it is all new and modern, and they hired a woman from GB who has something like 30 years experience as a warden to run the place for both the US and NATO — but they also have a training program for Afghani guards that is quite similar to EC standards for guards. It is provided with court rooms that can be used by both Afghani Courts and NATO and US Military Courts. This too is part of the “disposal” operation. Aside from the possibility that some high value al-Quada types may still be captured who could be tried in a US Federal Court — or if not Afghani could be sent to their home country for trial, what they have apparently done is establish a jointly operated prison facility that meets international standards, and that takes GITMO out of the equation. Not a perfect solution, but a whole lot better than something that puts the US up front in the way Gitmo and CIA black prisons has done.
Ultimately, the solution is for nation-states to take clear responsibility for their own nationals who are credibly accused of terrorism. This hardly reaches that goal, but it points in that direction. It moves in the direction of internationalizing the matter of what to do with non-state actors who engage in terrorism, takes them out of circulation, and puts responsibility for taking action where it actually belongs, competent nation states. I think it good politics and smart practice for the Obama Administration to move thusly.
How many military and air bases do we now have in Afghanistan and Iraq?
Okay, my comment posted before I even hit submit comment. I was typing mid comment and the page just refreshed on it’s own and only posted half of my comment.
The point – the whole point – behind the Republicans’ wanting to use the military commissions is that they want to have them around later, so they can use them the next time they gain power. On those they define as Democrats, liberals and dissenters.
Not using them now means there is a good chance they will wither on the vine before the Rethugs get the chance to use them.
And for those who might say “oh, the statutory authority for the miliary commissions won’t allow them trying American citizens domestically”, they need to remember that (a) the commissions were created in the absence ofdirect statutory authority and through John Yoo’s (and Addington’s and Bybee’s and Delahunty’s, inter alia) warping existing law to faciltate them, (b) making it up as they went along, as to those places where the existing law as warped would not reach, and (c) there is nothing which could preclude a future Republican president from shipping someone from the US to Gitmo a whole lot faster than any court could act. And, as to (c), remember also that improper venue (NY as opposed to SC) was the grounds for the S.Ct. deciding in Padilla’s first appeal that it would not address his habeas claim. Move the prisoner out of the jurisdiction and avoid judicial review on habeas – that’s the rule of the Padilla case. And that’s still good law.
And, to be really fair, does anyone out there really, seriously, think there is any way a civilian jury, having had the benefit of years of pretrial propaganda, will not convict and condemn KSM? Regardless of whatever atrocities the USG perpetrated upon him and the law in the years it took to get there?
ahhh no but that is up to the legal system to decide….not me or elected politicians, press…or anybody else…. I have faith in the system when its not bend…like it has been since papa dick and his boys…(BTW watch how they all run for cover now…that means we are taking the fight to them…and thats how you go about winning wars)
Lets show the world, the US and NYC…… what justice is all about…i think here in the not so “revolting” old world AKA EU thats called “fair trial” as in human rights court. And if found gilty ship them of to whatever the judge come op with…..
Here at the coffeemaker thats called the way we treat others in our costody defines the diff between us and the bad guys…….I guees some CENTCOM brass dude came op with that….bigtime mojo
Just my five cents worth
Actually, that bigwig was riffing off of MLK, Jr., who noted that one could discern the humanity of a country by how it treated those in its jails. And how it treated its poor.
Not a new sentiment, and not a new insight….
oh the world sees what the Bush administration’s kind of justice looks like. Hundreds of thousands dead and injured in Iraq, millions displaced. Drones killing innocents in Afghanistan and Pakistan.
The world sees what we consider justice just fine. They also know that most Americans driving to the malls in herds to buy plastic and silk shit from China could give a rats ass about the dead in Iraq. That is why so many people hate us and at the same time are terrified!
It occurs to me that the Republican fascination with military commissions has to do with defending their preference for a military response to 9/11 instead of one of those “wussy” law enforcement responses that put away folks like the 1993 WTC bombers.
A bunch of people hiding the fact that not only were they wrong, but they were big-time and trillion-dollar-cost wrong.
Republican scaredy-cats have a preference for authoritarian responses to every problem that does not have a market-driven solution. It’s all of a piece. They just don’t seem to have much faith in Democracy.
Bob in AZ
That’s far and away the most upfront information I’ve seen from either of them. It is true that they both owe Holder now, an odd position for Comey I guess after the Rich history. While everyone has focused on Yoo & Bradbury, torture, torture knowledge, assistance with or passive non-response to DOJ deception in the courts, to the public and before Congress, etc. permeated a much much broader swath than Yoo and Bradbury. So the non-response by HOlder and Obama to torture was a “Whew” moment.
A couple of things specifically about their piece – they come out and say what Holder should have incorporated into his response to Cornyn – i.e., that commissions are not a slam dunk. When Cornyn pressed Holder on whether or not his decision was just a whim or somehow compelled by law, and whether or not he didn’t agree the commissions were valid – Holder donned his “I need to look tough on terrorism” hat and responded in absolutist terms. As EW implies in the post, he’s not in a position to disavow the military commissions while at the same time opting in to use them, but he wasn’t really truthful with Congress based on existing RECENT Sup Ct cases.
If he’d been truthful he’d have said something like,
“While military commissions themselves have a history that confirms their use in certain situations, military commissions of the kind contemplated by the DTA and MCA are being used in ways very differnt from their historical use. We at DOJ obviously believe they are valid, or we would not be using them, but to be truthful to this committee, the facts are that provisions of the DTA and MCA have already been stricken by the Supreme Court in cases such as Hamdan and Boumediene. I’m sure I don’t need to dwell on these cases, since the committee is no doubt keenly aware of Sup Ct activities with respect to COngressional legislation.
So in answer to your question, the GITMO military commissions are uncharted territory and in my capacity as AG apprising this committee of the status fo the law on this issue, I would be remiss if I did not point out that there are some significant uncertainties. SOme of those uncertainties also attach to the kinds of charges that we will be pursuing under the commissions, which are not charges that have typcially been brougnt in front of commissions and various members of the Sup Ct have already mentioned in dicta that they are not confident some of these charges are proper for a commission.
We at DOJ have confidence in the commission, but I can not opine at this point that they a “slam dunk” however much this committee and the Executive might like to receive such an absolute assurance. We believe in the process and believe that it will be upheld, but it would be disingenuous to pretend there are not issues with its use, especially in light of several cases already striking provisions of the the acts that have established the commissions.
COmey and Goldsmith both do make the point that the commissions are not a slam dunk, although they a are a bit disingenuous themselves in trying to make it seem like it is only “recent” changes in law that make them so. I guess they are hanging that on Eisentrager, but to find a historical precedent for kidnapping people from around the world and disappearing them into torture without habeas, all with no battlefield umbrella, is not something that “used to be” ok under US law and has just recently come into question because of “changes” in Constitutional and “international” law. [I have to admit, I smiled at the international law reference from Goldsmith – to put it in at al is to admit that his prior thesis, i.e., you can get by with anything as long as you’re big enough, was either wrong or that he and his Bush/Cheney/Addington/Rumsfeld/Haynes etc. cartel have so managed to damage the United States that it is no longer applicable.]
The other point of note is that they point out the Holder’s stated rationale for military commissions for those he picked doesn’t hold water. That’s a point I made in coments too and you can’t credibly defend something you are doing solely for political reasons on a legal basis – which puts Holder in a position where in any argument in his position as AG (and not as politician) he has to keep repeatedly shooting himself in the foot to make the argument, which then just undermines his credibility overall.
Finally, the other important point they slip in is that they both are ok with (and Goldsmith has waxed poetic in other op eds about) the ability to kidnap people from around the world, disappear them, then hold them under a preventive detention rationale.
@2 – they are focusing on Nashiri. No one really wants to talk about Khadr.
YEah, that’s sort of my point. Holder should have offered to do a classified briefing, to say that there are real potential problems legally with the MCs.
But I suppose even that is more than he can say and not endanger them entirely.
At the risk of tangenting off into the realm of “11th dimension” theories, isn’t one potential explanation for Holder/Obama proposing a Federal trial for KSM but holding out “tribunals” for others quite possibly a “divide and conquer” strategy to move back toward actually conducting proceedings in accordance with the rule of law? Consider:
— no matter what “proposal” was floated, there can be no doubt but that the right wing was going to wail about it. Propose nothing but tribunals or commissions, they would be “too dangerous”; propose trials, they would be “too dangerous”. There is no scenario by which any proposal would be just accepted, there’s going to be exactly these kinds of cowardly fearmongering objections no matter what.
— Propose trying KSM in Fed court but hold out “commissions” for others? That predictably results in rightwing handwringing about how much “better” it would be to use commissions, how “terra-supportive” a Federal trial would be. The rw response has been clockwork predictable. And, quite frankly, the predictability has actually created a schism, a deflection, a division of rw fear/anger between doing absolutely nothing, on the one hand — which would have been the response to any single proposal — and instead complaining that the “other” option, which is apparently on the table, would have been preferable. So we get the right going very, very loopy right now in support of “commissions”, not in support of doing nothing. There’s actually some progress there, looked at from a certain perspective.
— Trials as “show trials”? There is a left-oriented criticism of the Holder/Obama proposal, too: the apparent contradiction between trials for some and commissions for others. Does that mean the trials will be “show trials”? Hardly necessarily. Here’s the obvious point: the DOJ’s assessment is they can and will obtain convictions of KSM in Federal court. While this fact may lead some to suggest the DOJ is just stacking the deck and “only” commiting to a Fed trial where they think they can predict and assure a conviction, well … DUH. When has the DOJ ever done other than strive to file a Federal case with an expectation they can get a conviction? And really, please, who doesn’t believe “they got the right guy” with KSM? The “issue” — the one the left correctly believes is one of the Rule of Law and the one the right fears — is whether a conviction can be obtained if the Rule of Law is applied. It would appear the DOJ has satisfied itself that this result can be achieved (I’m not here to debate the merits of the constitutional and evidentiary defenses which may available to KSM in a Federal trial, only to note that I doubt the DOJ is unaware of, or doesn’t expect to obtain a conviction notwithstanding, any of them). So, trying KSM in Fed court doesn’t necessarily mean that a trial of KSM will be a “show trial” — and if KSM is convicted in Federal Court, guess what the Holder/Obama strategy will have achieved: a vindication of the Rule of Law and all the associated American and international reaffirmation of “America’s principles” with all the attendant good things that go with that….. but limited/restricted by:
— The fact that some other detainees were routed toward commissions instead of trials. However, if KSM is convicted, the demonstrated validity of trials (actually, of course, it would be “re”-demonstrated, but who on the right is remembering that right now?) would certainly support using trials for those previously denied them and still in custody. And in light of the actual track record of the non-trial systems erected by Bush, as noted in this post and by Major Frakt but not many others, the actual chances are the trials will be finished first, eh?
— Viewed through this prism, maybe just maybe the Holder/Obama prosecutorial bifurcation decision constitutes a rather effective “divide and conquer” that could result in actual, Constitutionally-driven trials being conducted in Federal Court in New York, “notwithstanding” rabid rw contentions that commissions “should” have been used (but not in the form of a unified media-drenching “do nothing at all” insistence, remember 96 Senators all voting against even incarcerating a Terraist on US soil only months ago?) — and if there’s a conviction in the courts, well, lookie there, the courts DO work…..
There is room for a lot of hyperventilating by a lot of folks about whether some, all or part of the detainees should be treated as X, Y or Z, but if progress toward resolution is made while that bluster rages around it, that’s still progress of a sort, and is perhaps better than just being frozen in a binary A or B mode that is so easy to lock up politically. And the strategy of saying “give trials to some” and proceeding with those trials while the focus of pettifoggery is directed at the “look, there is another way maybe they could instead go” rather than “NO EFFING WAY”, maybe an actual result could be achieved. And if that actual result was that the Rule of Law was applied — not ignored as we have done for the past 8 years in America — that could constitute a real step in the direction of correcting the abuses of the past 8 years. And if KSM is guilty and that can be proven in a Federal court, that too would be Justice. I bet the DOJ thinks they can achieve that; if they can’t, the result may also be Justice. We have a Constitution here; let’s give it a shot.
Why do I think maybe there’s a method to this? Because the one thing the Obama administration has made perfectly plain is that they know how to play the media and try to control the “news cycle”. The “liberal failings” of the Obama administration have uniformly been pursued as a strategy of trying to minimize “confrontation” and “media attention” to all things “Bush” because attention to those things would detract attention from the “important agenda” like the economy, health care, etc. And strictly adhering to that strategy would have counseled the administration just continuing to try to keep the “detainee” ball in the air with no proposed resolution or, even, by defaulting into deference to the Bush commission system (like default deference hasn’t been SOP for Obama in most such instances?) They really are taking a step in proposing trials, it is NOT the path of least resistance for them to assert that the Constitution is worth protecting. But it seems logical that they would consider how they might best deflect, redirect or avoid at least the most direct attacks from the right as they tried to structure that proposal. And from that perspective, they really have effectively confused the right (and even the left) by making a “some trials, others commissions” pronouncement. And while the Noise Machines play “follow the shoe/no follow the gourd” out of Life of Brian, they’re going to put KSM on trial in New York.
The journey of a thousand miles begins with a single step. Holder has announced they will try some accused 9/11 terrorists in New York. Only eight years after the 9/11 attacks. Maybe it’s time to do that. Good luck with trying.
You’re way too realistic and practical to be taken seriously, WhatConstitution. Get serious now. C’mon.
And in light of the actual track record of the non-trial systems erected by Bush, as noted in this post and by Major Frakt but not many others, the actual chances are the trials will be finished first, eh
No – once they go forward with the commissions, they go forward relatively quickly. The delays have been in charging and habeas cases interposed. Hamdi’s case shows how quickly things proceed once they are actually in a commission posture. That is acknolwedged by Comey and Goldsmith (their reference to the procedural advantages goes to speed as well as evidentiary advantages, etc.) as well. The fact that the trials, unless they are kangaroo trials with pleas and tuckaways that won’t resovle anything, will be the lag line and not the lead line pretty much deals with the rest of what you are postulating.
Plus there are many detainees, still, that Comey, Goldsmith and Holder – along with Cornyn and Kyl and Graham – are saying will just be held without either avenue. I sure didn’t see anywhere in EW’s blog of the proceedings anyone asking Holder the big question – of what he’s going to do with people where habeas petitions have been granted and orders to release have been issued. You’d think someone might have touched on 30 of 38 habeas petitions, in front of Judges like Leon even, have resulted in orders of release. There’s a dog that didn’t bark.
isn’t one potential explanation for Holder/Obama proposing a Federal trial for KSM but holding out “tribunals” for others quite possibly a “divide and conquer” strategy to move back toward actually conducting proceedings in accordance with the rule of law
No.
BTW, the one other thing that the Comey/Goldsmith piece does it very obliquely reference something I’ve been saying for a long time. They mention that the allegations of mistreatment by detainees are going to buy them more before a military commssion than a civilian court:
I’ve mentioned over and over the way in which DOJ has been assidiously laying the foundation for permeating the US civilian courts with torture and how compliant the courts have been with that approach. That is a big contrast with the military response, from defense JAG (Swift) to prosecuting JAG (Vandeveld, Davis, etc.) to even the convening authority (Crawford) the military commissions, operating in a state of basic lawlessness, has shown a willingness to detain based on torture and to ignore consequences for torturers, but has STRONGLY resisted giving convictions tainted by torture.
US courts – not so much. So if the trials are anything other than circuses, what Obamaco is basically doing is going to bat strongly for further permeation of the Judicial system here with torture. I made the point awhile back, but both the Executive and Congress have been solidly permeated with torture – whatever you believe about briefings and Pelosi et al (and I’m not in Pelosi’s camp on that) the fact is that all kinds of direct evidence of torture has come out over and over and over – including torture being used directly to make the case for the AUMF for Iraq – and Congress has over and over entertained torture in its legislative proceedigns, to hand out war powers authorizations; to refuse to demand the turnover of al-Libi for Congessional questioning; to hand out torture amnesties; to cover up pictures of torture; etc.
But the courts have been being permeated as well, with destruction of evidence (to which they are taking no action); lies to the court (no action as long as the topic is Executive torture vs. something important like Qualcomm/Broadcomm set of lies); lies of faceless torturers who the court acknowledges are not subject to the court’s powers to punish perjury introduced as evidence; disclaimers by the court of the impact of torture on a detainees ability to assist in his own defense; etc.
DOJ has been ground zero – the clearing point for all the disseminations and permeations of torture into government, circumventing all checks and balances. They have so thoroughly permeated the Executive branch and Congress with torture, that those institutions are too dug in to withdraw. Now, they are using KSM to deliver the coup de grace and finalize the capitulation of the courts to torture as well.
I guess some could see that as progress of a sorts, a stalemate broken. I just see a lot of things other than the stalemate breaking.
Mary — thanks. But is it your position that utilizing the commissions as structured is preferable to a trial in a US federal court? Just asking. Certainly there are reasons to be concerned about whether the DOJ is trying to “soften up” the courts to tolerate torture, and certainly there are reasons to be concerned that the courts might do so, but are you suggesting those trepidations counsel selection of the commissions structure and the exclusion of trials in Article III US courts? I’m all for being wary of motives, but I’m not at all sure I accept that, on the current record as I understand it, as being a reason not to proceed with a trial in a US court. My comment above starts from that perception.
Certainly commissions very well could proceed expeditiously. Just as certainly, they might not — past experience could cut either way and, as there’s little doubt that the political winds could affect this question, I kind of doubt that it’s a certainty that the commission structure would race the courts to a verdict at this juncture. I think it’s erroneous to presume the two tracks would proceed with utter independence of one another, for any number of reasons.
From what I can make of things, the primary reason driving most of those opposing the use of the courts is the despicable and cowardly fear of exposing America’s torture regime to the world in a manner that might actually result in some accountability placed upon those who orchestrated it; I’m the last person who would advocate using the courts because they would facilitate continuing to ignore that history. I am not seeing where or how the use of the commissions system would substantially increase the potential evaluation of such matters versus a US court.
You’re right, the DOJ — whether Bush’s or Obama’s — has little to be proud of here and I’m not trusting them implicitly. But using the US courts has the pristine clarity of being grounded directly in the Constitution of the United States, and not in a commissions system so badly mangled by Bush & Co. that it repeatedly has been sent back by the Supremes as being materially unconstitutional, or is otherwise at the very least suspect as the creation of the Bush Malevolency. A blind squirrel might find an acorn, but it still has to be considered lucky, not good.
And I continue to believe that Obama and Holder both know all this and would like to figure out a way to where they are thinking they might start steering the very big ship in a direction of the home port, and they figure that they can’t turn it on a dime. Try using the courts, keep a vigilant watch on the constitutionality of the manner in which the courts and the DOJ proceed; if it works, it will be easier to use it again. That’s all I’m suggesting.
Does anyone have a link to the full indictments of Cole bombing suspects to which they refer? This is the related press release, but not the indictment itself.
Thanks for highlighting this item by Comey and Goldsmith, EW.
I found it clear, sensible, and prudent.
In other words, ‘heartwarming’.
As for the GOP…. uffff…
Lincoln must be rolling in his grave.
OT – but I thought I put up a comment and link yesterday to Isikoff’s piece (mostly about Bybee’s defense fund) that included a reference to Margolis being the career prosecutor who was reviewing the OPR. No time now to redo it or hunt for the link again, but I can’t find it now so heads up on that for the “career prosecutor” mystery from the Holder testimony.
Yeah, I saw that Iski blog piece yesterday. Hard to believe Margolis is going to do anything heroic; more likely a last review to make sure there is nothing else they can possibly redact or whitewash.
I’ll haveto go look for that (didn’t see it in the Iski piece).
Interesting thta they always go back to Margolis to review stuff that DOJ has conflicts on.
Also OT –
http://www.time.com/time/printout/0,8816,1940537,00.html
Time piece on the fall of Greg Craig.
“Does anyone have a link to the full indictments of Cole bombing suspects to which they refer? This is the related press release, but not the indictment itself.”
My files from my old computer are currently not accessable, but there is a transcript website (no URL) called something like “Cryptonomen” with all the trial transcripts, indictments, judgments, appeals briefs, etc.
I believe you can get there by searching the specific trials, and they are
United States of America v. Mohammad A. Salameh et al.
S593 Cr 180 (KDT)
United States of America v. Omar Ahmad Ali Abdel Rahman et al.
S593 Cr. 181 (MBM)
United States of America v. Ramzi Ahmed Yousef, Abdul Hakim Murad, Wali Khan Amin Shaw
S1293 Cr. (KDT).
United States of America v. Eyad Ismoil
S1293 Cr.180 (KDT).
United States of America v. Usama bin Laden et al.
S798 Cr. 103.
The last is not a trial, it is the 1998 bin Laden indictment, and I would think at least some of it would be parallel with a KSM indictment, who was indicted at the same time.
The transcripts are in total about 50 thousand pages. If you find the Cryptonome site, they have a pretty good internal search function.
Over the last couple of days I have been thinking about how one could structure trial evidence for the Prosecution and for presentation to the Jury. Been listening to a blow by blow description of the Fraud trial of Tom Petters (a mini Madoff) who is on trial for a ponzi scheme that only generated about 3.8 Billion in fraud. They have been occupied with Petters own testimony for the last couple of days, and just finished the cross examination. Closing arguments on Monday, and then the Jury gets the case. Defense was he blamed everything on his former administrator who was also his mistress, so there were several sexy tapes mixed in there with business discourse. (people who dealt with him in the last months of his business all wore wires, so oodles of tape.) Wonder what the Jury will do with it.
In an odd way, I think the KSM trial will look a little like this. The Prosecution has a vast inventory of KSM and bin al Sheib talking to an Al Jazerra reporter in either late August – early September, 2002, whom they invited from London to see them in Karachi to make tapes for Journalistic purposes for the first anniversary of 9/11. The reporter stayed several days in the “safe house” taping them, during which time they told him exactly how 9/11 went down, and then he returned to the Gulf with his tapes, and al Jazerra’s owner, the Sheik, took the tapes and turned them over to either FBI or CIA. Assuming this chain of custody can be verified, getting the tapes in as evidence, you have several days in Bin al Sheib and KSM’s own voice laying down all the details, and since it was before either was arrested, voluntary statements. Al Jazerra published much of the content in arabic — smaller segments in English, but the Christian Science Monitor did a long series on the content which is just factual as to what was said on the tapes, and what al-Jazerra published. The CSM series is, if I remember rightly, about 5 segments long. Anyhow, the content of the tapes, but not the tapes themselves have been in the public domain since September 2002. In essence, properly handled, the voices of the two convict them. How did you do it? — well here is a thirteen hour long tape with all the details. I would play tapes for the Jury, and give them proper transcripts.
I would then organize other evidence that Intelligence collected, such as documents, things on computer hard drives, phone and credit card records, banking records and all to validate the claims made on the tapes. If they use the existant indictment for the Bojinka plot, the document and phone records used in that Ramzi Yousef case could all come in. I would imagine NSA has a lovely inventory of e-Mail and phone records that back up KSM’s taped claims on both events. There are other elements to this of course — one would have to connect all the planning with the actual hijacking, and buildings falling down, and all the deaths resulting from this, but I suspect all this can be done without using any evidence collected after either of these indictees were arrested. I suspect the case can be fairly simple and straightforward — very streamlined in fact, not opening a good many of the potential diversions that are “out there.”
I suspect they just might have difficulty finding 12 Jurors who all agree on Penalty. In all the previous cases tried as Capital Crimes, they have had little problem with the guilt phase — but always had one or a few hold out’s on the death penalty. Apparently the Southern District of New York has not delivered a Death verdict since the Rosenbergs, so something must be in the drinking water. My own preference as a life long opponent of the Death Penalty is 3000 sentences of life without parole anyhow, particularly since they want to be Martyrs.
I think one of the points of this public trial ought to be understood as formally assigning guilt after the narrative of the crimes in detail has been put on the record. I look at the Saudi survey research where only about 7% of the population accepts that Saudi citizens played a major role in the plot of the crime, at the Pakistani statistics that put general acceptance of the narrative at below 20%, and even our own US statistics where fairly clear understanding of the evidence has never risen much above 60% — so I see a need for a public trial — not a show trial, a public trial where the defendents have access to necessary means to claim other than what the evidence seems to fully prove. It will never convince many in Pakistan or Saudi Arabia — but it will establish a serious, tested body of best evidence that would survive. At this juncture I think this business of “documenting the history” is a very important trial goal.
Anyhow, at this juncture, that is how I have scoped out the eventual trial.
I suspect that is exactly the plan Sara.
I’d bet against them having trouble finding 12 jurors who agree on the penalty phase. I don’t think the jurors will have any problem with DP in KSM’s case, with the evidence involving him and his bragging over his participation in so much that is so heinous.
I’m not sure if by all the previous cases, you mean Fed Death Penalty cases (there have been DPs under that act) or the al-Qaeda linked terrorism cases brought so far, but if it’s the latter, I don’t think they’ve had anyone with anything like the degree of involvement, planning, and culpability as a KSM yet – much less with a Presidential affirmation that a death penalty would be handed down.
Apparently when it comes to KSM, as opposed to torture, Obama is willing to do what the law requires – look back – and even willing to do what it does not – pronounce sentence from the office of the President.
Yeah, I don’t see any problem with getting a death sentence either. You never know, all it takes is one dude to say no, even if it is because he just doesn’t think it appropriate to allow KSM to be a martyr as opposed to any fundamental issue with the death penalty per se.
As to the paucity of death sentences in the New York jurisdiction, that is not surprising in the least. NY does not have the death penalty under its state law so there won’t be any there, and there are not all that many Federal crimes that are eligible. In fact, the Federal death penalty was only reinstated as of 1988, and through the end of 2004 it had only been sought by the DOJ a total of 431 times in the entire country and territories, and a death sentence returned only 59 times out of the 431. Also keep in mind that many of those may be common murder prosecutions on Indian reservations, which the Federal government prosecutes.
It does just take one, but I’m guessing after voir dire there won’t be anyone on who won’t be just waiting to get things out of the way to get to the sentence – not that I’d blame them for that and I wasn’t even in NYC on 9/11. Heck, defense counsel wouldn’t want me on the jury, for sure.
BTW – not to beat this to death, but for me the big takeaway in the Comey/Goldsmith piece was them saying what I’ve been pushing on for awhile – that the US courts are going to be more compliant over torture the the military commissions. People need to process that as a part of what DOJ has “gained” for the nation – it’s shaped a judicial response that accepts torture, if “national security” is claimed. That’s the under-the-radar take away from a lot of the cases like Padilla and Saleh and Moussaoui etc.
Torture some sources for a witness warrant, then disappear someone into more torture for years, then smile and produce them for trial in courts that, per the gurus, Comey and Goldsmith, will be more lenient with that behavior than an almost lawless military commission would be.
What kind of people, what kind of lawyers, kick back and take pride in doing that to this country?
I agree. The hell of it is, it is not because the rules are so much more slack in Federal courts, it is that Federal judges are bending over backwards and contorting to “get those suckers!”. Quite frankly, I think the relative isolation of the military commission proceedings – remote locked down forums, minimal press etc. – are a blessing in at least one regard in that it allows the trier of facts and law a little more space to judge. And the Neocon Repub wailers and shriekers have a lot harder time whining, bitching and moaning about the military actors.
Meanwhile – that DOJ also is dropping charges against one of the Blackwater, Nisoor square shooting guards.
http://www.chron.com/disp/story.mpl/ap/top/all/6731742.html
I’m sure the Iraqis have been impressed at the Obama State Dept and DOJ handling of this case.
How many times did DOJ re-try the crazy Miami guys in order to get a conviciton?
As many as it took.
Interesting, and the basis is sealed. Something is up there; I wonder if they rolled him? I don’t think it is the Garrity Letter immunity issue, that would affect more than one single individual and would not need to be sealed as to basis.
BTW – from the Greg Craig article
http://www.time.com/time/printout/0,8816,1940537,00.html
an example of what happens with an empty suit in a leadership role – explaining what happened after Obama started to get cold feet on the release of the pictures:
Apparently Obama was worried about antagonizing lawmakers, so he just forced the Democrats to own the legislation handing off the release decision to Gates. And they do OWN that decision and legislation. That’s what it means to be a Democrat in this party and with this President and Congressional leadership.
And re: eleventy dimensional chess:
emph added
Yeah – I guess the whole problem was the dead enders and that Obama didn’t have “his people” in place.
Or not.
Sounds like an utterly damning expose of the ceaseless self-promoters Obama and Emanuel.
I was starting to sense a while back that Greg Craig was one of the principled ones standing up to petty political hacks in the White House. Sounds like he was, and all credit to him for that. Craig is well out of that snakepit if it’s actually the President who’s the primary political hack, not just his loathsome chief of staff.
Carol Rosenberg has the news of another principled stand by a U.S. federal judge, who today overturned the 31st government request to continue to detain a Guantanamo prisoner:
Judge Kessler’s Order
Men like that are why our military couldn’t possibly have classified and treated our foreign captives as POWs… Right, Members of Congress?? Right, Mr. Comey and Mr. Goldsmith??
“Assessing Damage, Urging Action”
I’m having a bad day today bmaz. Thanks for the chat.
9/11 trial a death penalty test for NYC juries
I agree with Sara’s argument that concluded
We have had too few such trials since the early 1960s.
A little OT —
Today’s “Talk of the Nation” Science Friday program had a fascinating interview with a Dr. Henderson who back in the 1960’s and 70’s directed the World Health Organization program to wipe out Small Pox. Very interesting story he has to tell.
Shortly after 9/11 Henderson was called in to consult HHS on the issue of whether or not to produce vaccine and re-vacinate the whole US population against Smallpox, which along with Anthrax was what worried the Bush Administration as a probable Bio-warfare agent. They both found and newly produced great masses of Smallpox vaccine (the old stuff) and while Henderson just favored putting it into cold storage until there was hard evidence it was needed, apparently Cheney and Libby were on the warpath to go ahead with the whole three Hundred million of us getting vaccine, no exceptions, a course which would have produced thousands of hospitalizations, and perhaps 3000 deaths from the vaccine itself. Henderson was totally against, as was HHS, so they took Cheney on a trip to CDC in Atlanta, where all the experts there strongly advised against the mass vacination program. Late afternoon they flew back thinking they had headed off Cheney, but by the time Henderson got back to his
Baltimore house, Cheney’s office had called, and planned to announce the mass program the next morning, and Henderson was ordered to be present at the press conference.
Next morning, Henderson went to the WH, but nothing happened. No Press Conference. Later he heard that Cheney had not run his proposed order to Vacinate every American past Bush but when someone put the Presidential Order in front of Bush, he balked. Result, we have all the necessary vaccine to mass vacinate, all the necessary special forked needles in inventory, but at the last minute Bush cancelled the orders Cheney was prepared to issue in Bush’s name. Henderson said he later heard from WH Staff that the whole matter caused a huge high donneybrook between Bush and Cheney (along with Libby). Something about discovering Bush had a little common sense is a bit disquieting, but I suspect this is just a minor version of the form of critical decisions in the Bush/Cheney White House. Given that Bush was pretty much personally dependent on that weak reed Gonzales for Legal advice during the first term, (Bush was not all that close to Ashcroft, and Harriet Meyers was not any more substantial than Gonzeles,) one can just imagine how Cheney backed up by Libby and Addington probably operated as they went about writing the processes for dealing with any and all detainees. Henderson’s story was insightful.
Sara,
Perhaps most emptywheelers have moved on, but I appreciate your last two comments above.
Thanks,
Bob in AZ
“SDNY civil criminal trials make sense to me in this “disposal” operation simply because I think they have a strong body of pre arrest evidence that can come in in a federal trial, that evidence has a high probability of leading to conviction, and removes the defendents from the scene for good. That’s necessary to getting to the goal of eliminating Gitmo for good.’
I have heard Holder say that a conviction is almost assured. Sounds like they have all ready determined their guilt. Sounds pre judged to me.
Convicting people who have more than likely been tortured beyond repair. How can KSM be put on trial. Does he have his marbles after being tortured 183 times?
Where are his children? Will they put them on the stand?